Citation Nr: 0619474
Decision Date: 07/03/06 Archive Date: 07/13/06
DOCKET NO. 03-28 522 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Anchorage,
Alaska
THE ISSUE
Entitlement to an initial rating in excess of 70 percent for
adjustment disorder and depression with psychotic features.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Meawad, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1971 to March
1974 and from May 1983 to August 1987. He subsequently
served in the Air National Guard. He retired from service in
June 2000.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Anchorage, Alaska, which, in pertinent part, granted service
connection for an adjustment disorder with anxious and
depressed mood and assigned a 10 percent rating, effective
June 2000. In July 2003, the disability was recharacterized
as an adjustment disorder and depression with psychotic
features and the rating was increased to 30 percent,
effective June 2000.
In May 2005, the veteran was afforded a personal hearing
before the undersigned. A transcript of the hearing is of
record. In July 2005, the Board remanded the present matter
for additional development and due process concerns.
In a February 2006 rating decision, the RO granted an
increase to 70 percent for the service-connected adjustment
disorder and depression with psychotic features, effective
June 2000.
FINDING OF FACT
The veteran's adjustment disorder and depression with
psychotic features is not manifested by total occupational
and social impairment.
CONCLUSION OF LAW
The schedular criteria for an initial assignment of a
disability evaluation in excess of 70 percent for adjustment
disorder and depression with psychotic features have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§
4.7, 4.130, Diagnostic Code 9440 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to notify and assist
VA has a duty to notify claimants for VA benefits of
information necessary to submit to complete and support a
claim and to assist claimants in the development of evidence.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West
2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)
(2005). In this case, VA's duties have been fulfilled to the
extent possible.
Specifically, VA must inform the claimant of any information
and evidence not of record (1) that is necessary to
substantiate the claim, (2) that VA will seek to provide, and
(3) that the claimant is expected to provide. In what can be
considered a fourth element of the requisite notice, VA must
"also request that the claimant provide any evidence in the
claimant's possession that pertains to the claim." 38
C.F.R. § 3.159(b)(1) (2005); see 38 U.S.C.A. § 5103A(g) (West
2002).
During the pendency of this appeal, the Court issued a
decision in the consolidated appeal of Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA
notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) apply to all five elements of a service connection
claim. Those five elements include: (1) veteran status; (2)
existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. The
Court held that upon receipt of an application for a service-
connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Id..
Additionally, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id.
The Court, in Dingess, also stated the following:
In cases where service connection has
been granted and an initial disability
rating and effective date have been
assigned, the typical service connection
claim has been more than substantiated,
it has been proven, thereby rendering
section 5103(a) notice no longer required
because the purpose that the notice was
intended to serve has been fulfilled.
Id. at 491.
Furthermore, the Court stated that once a claim for service
connection has been substantiated, the filing of a notice of
disagreement with the RO's decision does not trigger
additional § 5103(a) notice. Id. at 493. While the veteran
has not claimed that VA has not complied with the notice
requirements of the VCAA, § 5103(a) and § 3.159(b)(1) are no
longer applicable in the instant case. Service connection
was granted in December 2001, a disability rating was
assigned, and an effective date was established. Thus, the
veteran's claim was substantiated as of December 2001. Since
the veteran's claim was already substantiated at the time §
5103(a) was enacted, the Secretary had no obligation to
provide notice under that statute. Id.
Although not obligated to do so, by letters dated in March
2002 and August 2005, the RO informed the veteran of the
requirements to establish a successful claim for a higher
rating, advised him of his and VA's respective duties, and
asked him submit information and/or evidence, which would
include that in his possession, to the RO.
The RO also sent the appellant a letter in April 2006
notifying him of additional information about a disability
rating and an effective date. In the usual course of events,
VA would readjudicate the pending claim after providing such
notice. The fact that this did not occur in this case,
however, is harmless error since such notice was not even
required for the reasons given above.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d)
(2005). All identified, pertinent evidence, including the
veteran's service medical records and post-service VA
treatment records, has been obtained and associated with the
claims file. There is no indication of any relevant records
that the RO failed to obtain.
Assistance shall also include providing a medical examination
or obtaining a medical opinion when such is necessary to make
a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002);
38 C.F.R. § 3.159(c)(4) (2005). The veteran underwent VA
examinations in June 2001, April 2002, and December 2005.
The duty to notify and assist having been met by the RO to
the extent possible, the Board turns to the analysis of the
veteran's claim on the merits.
II. Higher rating
Disability ratings are intended to compensate impairment in
earning capacity due to a service-connected disorder. 38
U.S.C.A. § 1155 (West 2002). Separate diagnostic codes
identify the various disabilities. Id. It is necessary to
evaluate the disability from the point of view of the veteran
working or seeking work, 38 C.F.R. § 4.2 (2005), and to
resolve any doubt regarding the extent of the disability in
the veteran's favor. 38 C.F.R. § 4.3 (2005).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (2005).
In considering the severity of a disability, it is essential
to trace the medical history of the veteran. 38 C.F.R. §§
4.1, 4.2, 4.41 (2005). Consideration of the whole-recorded
history is necessary so that a rating may accurately reflect
the elements of the disability present. 38 C.F.R. §§ 4.2
(2005); Peyton v. Derwinski, 1 Vet. App. 282 (1991).
In Fenderson v. West, 12 Vet. App 119 (1999), the Court
emphasized the distinction between a new claim for an
increased evaluation of a service-connected disability and a
case (such as this one) in which the veteran expresses
dissatisfaction with the assignment of an initial disability
evaluation where the disability in question has just been
recognized as service-connected. VA must assess the level of
disability from the date of initial application for service
connection and determine whether the level of disability
warrants the assignment of different disability ratings at
different times over the life of the claim-a practice known
as "staged rating."
In a December 2001 rating decision, the RO granted service
connection for adjustment disorder with anxious and depressed
mood and assigned a 10 percent rating under 38 C.F.R. §
4.129, Diagnostic Code 9440. In a July 2003 Decision Review
Officer decision, the disability rating was increased to 30
percent effective June 12, 2000. In a February 2006 rating
decision, the RO again increased the disability rating to 70
percent effective June 12, 2000.
Under Diagnostic Code 9440, a 100 percent rating is warranted
if there is total occupational and social impairment, due to
such symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations; gross
inappropriate behavior; persistent danger of hurting self or
others; intermittent inability to perform activities of daily
living (including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation or own name.
A 70 percent rating is warranted when there is occupational
and social impairment, with deficiencies in most areas, such
as work, school, family relations, judgment, thinking, or
mood, due to such symptoms as: suicidal ideation;
obsessional rituals which interfere with routine activities;
speech intermittently illogical, obscure, or irrelevant;
near-continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships.
When evaluating a mental disorder, the rating agency shall
consider the frequency, severity, and duration of psychiatric
symptoms, the length of remissions, and the veteran's
capacity for adjustment during periods of remission. The
rating agency shall assign an evaluation based on all the
evidence of record that bears on occupational and social
impairment rather than solely on the examiner's assessment of
the level of disability at the moment of the examination.
When evaluating the level of disability from a mental
disorder, the rating agency will consider the extent of
social impairment, but shall not assign an evaluation solely
on the basis of social impairment. 38 C.F.R. § 4.126 (2005).
The symptoms recited in the criteria in the rating schedule
for evaluating mental disorders are "not intended to
constitute an exhaustive list, but rather are to serve as
examples of the type and degree of the symptoms, or their
effects, that would justify a particular rating." Mauerhan
v. Principi, 16 Vet. App. 436, 442 (2002). In
adjudicating a claim for an increased rating, the adjudicator
must consider all symptoms of a claimant's service-connected
mental condition that affect the level of occupational or
social impairment. Id. at 443.
A global assessment functioning (GAF) rating is a scale
reflecting the psychological, social, and occupational
functioning on a hypothetical continuum of mental-health
illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996),
citing Diagnostic and Statistical Manual of Mental Disorders
(4th ed.1994).
A GAF of 41 to 50 is defined as serious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent
shoplifter) or any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable
to keep a job).
A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat
affect and circumstantial speech, occasional panic attacks)
or moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-
workers).
A GAF of 61 to 70 is defined as some mild symptoms (e.g.,
depressed mood and mild insomnia) or some difficulty in
social, occupational, or school functioning (e.g., occasional
truancy or theft within the household), but generally
functioning pretty well, has some meaningful interpersonal
relationships.
It should also be noted that use of terminology such as
"moderate" by VA examiners or other physicians, although an
element of evidence to be considered by the Board, is not
dispositive of an issue. All evidence must be evaluated in
arriving at a decision regarding an increased rating. 38
C.F.R. §§ 4.2, 4.6 (2005).
In June 2001, the veteran was afforded a VA examination. His
past records were reviewed. He stated that he was socially
active with a number of acquaintances and friendships that
had lasted over time. He had been married for 23 years. He
was currently trying for a civil service position. Mental
examination showed that the veteran had no psychomotor
agitation or retardation and his thought processes were
logical and coherent with good associations. He was not
hallucinating or delusional, his affect was appropriate
without subjective depression of mood, and speech was
neurologically intact without articulation or paraphasic
error. He had good eye contact and physical hygiene. He was
oriented to time, person and place and his long and short
term memory was intact. Insight into his emotional needs and
interpersonal relationships were quite good without any major
distortions and his judgment was unimpaired. The veteran was
diagnosed as having adjustment disorder with anxious and
depressed mood, recurrent, not active and was given a GAF
score of 80.
In April 2002, the veteran was again afforded a VA
examination. The claims folder was reviewed. At that time,
the veteran reported having a history of considerable
employment difficulties. He was employed and drove a "blood
mobile." He stated that he was anxious and depressed and
experienced occasional sleep disturbances. He stated that
for the past 5 years he drank his own urine and semen and
looked in empty lots and phone booths for coins. Mental
status examination showed the veteran was appropriately
dressed with good eye contact and behavior within normal
limits. He was coherent and articulate and was oriented to
person, place and time. The examiner questioned whether he
was experiencing hallucinations as the veteran stated that he
wondered if there was a device implanted in his finger
monitoring his location and behavior. His memory was intact
for his age. His affect was somewhat blunted and his mood
showed a degree of depression. He had sleep disturbances,
was rather angry, had low self esteem and had appetite
changes. He had a great deal of anxiety and worry at that
time. There was no evidence of suicidal or homicidal
ideation. His insight was fair at best and his judgment was
intact. He was diagnosed as having depressive disorder, not
otherwise specified, with psychotic features, and was given a
GAF score of 50 for serious emotional and behavioral
symptomatology.
The veteran began receiving VA psychiatric treatment in April
2002. In June 2002, he was noted to have paranoid delusional
themes, but denied hallucinations or intent/plan to harm
himself or others. In June 2003, he stated that he lost his
job at the blood bank. He was diagnosed as having schizotyal
personality disorder based on his ideas of reference, odd
beliefs and behaviors, odd thinking, suspiciousness, and
paranoid ideation, lack of close friends and social anxiety.
He was given a GAF score of 49. During treatment in March
2004, the examiner reported that the veteran continued to
lack insight about how his bizarre and paranoid ideas were
adversely impacting his marriage, possibly his relationship
with his son, and the loss of his job. In a June 2004 mental
status examination, the veteran was found to be somewhat
disheveled. His speech was fluent and hyperverbal, but not
pressured. His mood was depressed and his affect was
congruent and did not brighten with social cues. His
thoughts were circumstantial and he perseverated on his
unemployment. His judgment and insight were fair and denied
any suicidal ideation. He was diagnosed as having major
depressive disorder, single episode; schizotypal personality;
and occupational problem.
In December 2005, the veteran was afforded another VA
examination. The claims file was reviewed. At that time,
the veteran was employed and commuted to work. He stated
that he went to church two or three times a month and did not
have any close friends outside of his family. He had marital
conflicts, however, and stated he felt more needed at work
than at home and stayed longer at work as the situation at
home was so unpleasant. He enjoyed fishing in the summer.
He stated that he did not have any close friends outside of
his family. On mental status examination, the veteran was
neatly dressed and polite and pleasant in manner. He spoke
in a normal rate and tone. He had no flight of ideas,
loosening of associations, tangentiality, or
circumstantiality. The veteran had some paranoid delusions
about having a tracking chip implanted in his finger by the
National Guard or OSHA and that someone made a death threat
against him in Saudi Arabia, but denied any auditory
hallucinations or ideas of reference. He also denied any
suicidal or homicidal ideation. He was mildly depressed. He
was alert and oriented to all three spheres. The veteran was
diagnosed as having major depressive disorder, recurrent with
psychotic symptoms and was given a GAF score of 50 as he
continued to have some paranoid feelings and symptoms of
depression. The examiner noted that the veteran was employed
full-time and was benefiting from psychiatric treatment.
However, his prognosis for depression with psychotic symptoms
was only fair.
In examining the evidence in this case, the Board concludes
that the findings do not approximate the criteria for the
assignment of a 100 percent disability rating. Although the
veteran was having difficulties with unemployment, he was
employed full-time at the time of the last VA examination.
He commuted to work on his own and attended church two to
three times a month. The VA examiners in April 2002 and
December 2005 assigned a GAF scale score of 50, suggesting
serious, as opposed to total impairment.
Additionally, the Board notes that the veteran does have
persistent paranoid delusions. However, the VA examiner
stated that despite his delusions, he was able to work full-
time in which he had to plan the menu, order the food and had
three cooks who worked for him. See Transcript May 31, 2005,
p.9. Furthermore, a higher rating is not warranted as the
veteran has not demonstrated any other symptoms listed in the
diagnostic code criteria such as gross impairment in thought
processes or communication; gross inappropriate behavior;
persistent danger of hurting self or others; intermittent
inability to perform activities of daily living (including
maintenance of minimal personal hygiene); disorientation to
time or place; or memory loss for names of close relatives,
own occupation or own name. Rather, he has been described as
logical and coherent with good associations with no suicidal
or homicidal ideations; alert and oriented to time, person,
and place; short and long term memory was intact; and neatly
dressed with good hygiene. The veteran's beliefs, behaviors,
and thinking had been described only as odd, not grossly
inappropriate or grossly impaired, and his depression has
been described as only mild. Therefore, a disability rating
in excess of 70 percent is not warranted. The preponderance
of the evidence is against a rating higher than 70 percent
for the veteran's adjustment disorder and depression with
psychotic features.
The Board finds that the VA examination reports show that the
veteran has adjustment disorder and depression with psychotic
features. None of the examination reports support the
assignment of a higher rating. The veteran is competent to
report his symptoms. However, the training and experience of
medical personnel makes the VA doctors' findings more
probative as to the diagnosis and extent of the disability.
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding
that a witness must be competent in order for his statements
or testimony to be probative as to the facts under
consideration). Accordingly, the evidence does not
approximate total occupational and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks due to
adjustment disorder and depression with psychotic features.
The Board has considered all potentially applicable
provisions of 38 C.F.R. Parts 3 and 4, whether or not they
have been raised by the appellant or his representative, as
required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
In this case, the Board finds no other provision upon which
to assign a higher rating.
The preponderance of the evidence is against the assignment
of a rating in excess of 70 percent for the veteran's
adjustment disorder and depression with psychotic features.
Thus, the benefit-of-the doubt doctrine does not apply, and
the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to an initial rating in excess of 70 percent for
adjustment disorder and depression with psychotic features is
denied.
____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs